HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court AFR  
Case :- SPECIAL APPEAL DEFECTIVE No. - 503 of 2015  

Appellant :- Smt. Somwati  
Respondent :- State Of U.P. And 2 Others  
Counsel for Appellant :- Mohd. Navi Hussain  

Counsel for Respondent :- C.S.C., Ravindra Kumar Gaur.  

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice  
Hon'ble Yashwant Varma,J.  

The appellant, who sought a writ directing the payment of family pension to her as a widow of a deceased employee who was working as a Peon in the office of the Town Area Committee, Atmadpur, District Agra, is aggrieved by the dismissal of her petition on the ground of laches.  

The case of the appellant is that her husband was a peon in the Town Area Committee, Atmadpur, Agra. It has been stated that he attained the age of superannuation on 31 December 1997. The grievance of the appellant is that after the death of her spouse on 5 October 2001, she was entitled to payment of family pension which, however, was not released.  

The writ petition was filed in May 2015 for the release of family pension and other benefits to which the appellant would be entitled to after the death of her husband. The learned Single Judge dismissed the writ petition holding that it was barred by laches.  

The right to receive pension or, for that matter, family pension is a continuing right. The failure of the employer to deny such pension would constitute a continuing wrong. A distinction has to be made between cases where a delay in moving the Court results in a situation where vested rights of third parties are disrupted. Consequently, issues such as seniority have to be adjudicated at the earliest. On the other hand, a matter such as pension relates to the employee himself and where family pension is involved, it does not affect rights of third parties in spite of delay. Consequently, it is also well settled that a claim to pension, where pension has not been paid, is based on a continuing wrong and relief can be granted even if there is a delay. However, on the entitlement of arrears, it would be open to the High Court to restrict the relief by confining the payment of arrears to a period of three years prior to the date of the filing of the writ petition.  

This principle was summarized in Union of India vs. Tarsem Singh1 by the Supreme Court :

"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."  

We are of the view that the learned Single Judge was manifestly in error in dismissing the writ petition on the ground of laches. The appropriate remedy would be to direct that the claim of the appellant be duly verified in accordance with law. We clarify that authorities shall duly scrutinize the basis of the claim on merits and if the appellant is entitled to the payment of family pension, such payment, for a period of three years prior to the filing the writ petition, shall be effected in favour of the appellant. We clarify that this would be subject to due verification of each and every factual averment which is contained in the petition by the competent authority. This exercise shall be completed within a period of four months from the date of receipt of a certified copy of this order. The appellant would be entitled to simple interest at the rate of 6% per annum. By way of abundant caution, we clarify that the direction for the payment of family pension and interest would operate only if, upon due verification of the factual averments on the basis of which the claim was set up, the claim is found to be substantiated by the competent authority.  

The special appeal is, accordingly, allowed.  

There shall be no order as to costs.  

Order Date :- 23.7.2015  

RK (Dr D Y Chandrachud, CJ)  

(Yashwant Varma, J)